September 18, 2012

“You’re supposed to say there’s some angle, some methodology you’re pushing... There’s originalism. There’s textualism. All these useless peripheral debates other than just doing our jobs as best we can.”

Just doing my job as best as I can. That's the modest-selfless-judge methodology... the methodology that dares not call itself a methodology... the methodology embraced by every Supreme Court nominee when he/she comes before the Senate Judiciary Committee ... at least ever since that one guy got borked.

Thomas was interviewed by lawprof Akhil Reed Amar — who has a new book out, "America's Unwritten Constitution: The Precedents and Principles We Live By." I bought that and I recommend it. I got the Kindle version, which allows me to tell you that it contains only 2 mentions of Justice Thomas by name. There's an endnote at 551 about the "contrasting visions" of Brown v. Board of Education "on pervasive display" in the 2007 school integration case Parents Involved in Community Schools v. Seattle School District No. 1, referring to Thomas's "politically conservative reading." And there's a reference, on the same page, to Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2d Amendment incorporated in the 14th Amendment).

14 comments:

Anyone who bothers to take the SLIGHT effort that is needed to learn about the long history of state established churches before the 14th Amendment, with no mention by anybody during drafting or ratification of an intention to disturb them, would understand why Justice Thomas might conclude that incorporating the Establishment Clause is not required by the 14th.

Thomas says he has no methodology and admits to just doing the best I can, a statement which demonstrates modesty, and the I'm-so-clever-no-one-can-pull-the-wool-over-my-eyes Althouse calls it a false modesty methodology . Everybody's working an angle in Althouseland.

Yeah, me too. l even have that book called CLARENCE THOMAS because you were reading it before Kindle, right here in the bookcase, and it doesn't even pop up. Oh wait, that's Egyptian Drawings, but it is up there.

And there's a reference, on the same page Thomas's questioning whether the Establishment Clause ought to have been seen as applicable to the states through the 14th Amendment (even though he found the 2dAmendment incorporated in the 14th Amendment).

There's an obvious distinction in the language, though -- 2d Amendment says the right "shall not be infringed." 1st says just that "Congress shall make no law." 2d amendment being incorporated against the states -- if incorporation is accepted as valid at all -- fits more easily with the actual text than the 1st, which only purports to restrict Congress, no one else.

It would be interesting to hear the full speech. I don't trust the NYT to report anything concerning Thomas truthfully.

I'm not sure if this is what he is saying, but the quote seems to emphasize the disconnect between the analysis of law students and law profs and the actual process of being a judge. I don't think he is denying that he has principals and favorite methods of analysis. But I also don't think he (or anyone) approaches a case by thinking of some nice compact recipe for reaching a conclusion.

Having read his memoir, My Grandfather's Son, I came away thinking Thomas is an actual genius. Not the way people in academic throw around "oh, he's so brilliant". But a genius who is so bright he has no idea how much brighter than everyone he is. So he can't seem to recognize why things that are astonishingly easy to him aren't easy for everyone else. For him, law is simple, and those who pontificate reasons and methodologies are just mentally pleasuring themselves rather than working.

Does Marty Redish ever write anything anyone reads anymore? I'm assuming he's still alive. He was my conlaw prof at NU and I liked him a lot. His "Constitution as Political Structure" is a very interesting book.

I have always thought that applying the Establishment Clause to the states is a bit like what would happen if someone tried to apply the McCarran-Ferguson Act to the states. The results are, to say the least, incoherent.